Amidon v. Student Ass'n of State Univ. Of New York

• Decision Date: 20 November 2007
• Docket Number: Docket No. 05-6664-cv (CON).,Docket No. 05-6623-cv (L).,Docket No. 06-0117-cv (XAP).
• Citation: 508 F.3d 94
• Parties: Eric AMIDON, Winston Brownlow, and Collegian Action Leadership League of New York, by its President, Plaintiffs-Appellees-Cross-Appellants, v. STUDENT ASSOCIATION OF the STATE UNIVERSITY OF NEW YORK AT ALBANY, New York Public Interest Research Group, "NYPIRG," and President of the Student Association of the State University of New York at Albany, in his official capacity, Defendants-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

508 F.3d 94

Eric AMIDON, Winston Brownlow, and Collegian Action Leadership League of New York, by its President, Plaintiffs-Appellees-Cross-Appellants, v. STUDENT ASSOCIATION OF the STATE UNIVERSITY OF NEW YORK AT ALBANY, New York Public Interest Research Group, "NYPIRG," and President of the Student Association of the State University of New York at Albany, in his official capacity, Defendants-Appellants-Cross-Appellees.

Docket No. 05-6623-cv (L).

Docket No. 05-6664-cv (CON).

Docket No. 06-0117-cv (XAP).

United States Court of Appeals, Second Circuit.

Argued: March 23, 2007.

Decided: November 20, 2007.

Thomas Marcelle, Law Office of Thomas Marcelle, Albany, NY, for Eric Amidon, Winston Brownlow, and Collegian Action Leadership League of New York.

Lewis B. Oliver, Jr., Oliver & Oliver, Albany, NY, for the Student Association of the State University of New York at Albany.

Michael B. De Leeuw (Alexander R. Sussman, Darcy M. Goddard, Michael F. Savicki, Sloan S.J. Johnston, Alexis Karteron, on the brief), Fried, Frank, Harris, Shriver & Jacobson LLP, New York, NY, for New York Public Interest Research Group.

David C. Vladeck, Georgetown University Law Center, Institute for Public Representation, Washington, D.C., for amicus curiae Connecticut Public Interest Research Group.

Before: WALKER and B.D.PARKER, Circuit Judges, and CASTEL, District Judge.^*

JOHN M. WALKER, JR., Circuit Judge:

In this appeal from a November 7, 2005 judgment of the United States District Court for the Northern District of New York (David N. Hurd, Judge), we decide whether the Student Association ("SA") of the State University of New York at Albany ("SUNY-Albany") violated the First Amendment by using an advisory student referendum to determine how to allocate funds from a mandatory student activity fee among student organizations. The district court held that it did. See Amidon v. Student Ass'n of the State Univ. of N.Y. at Albany, 399 F.Supp.2d 136 (N.D.N.Y. 2005). For the reasons that follow, we agree.

BACKGROUND

Every semester, SUNY-Albany collects a mandatory student activity fee of $80 from each student, generating approximately $1.69 million annually. A student who fails to pay this mandatory fee cannot register for classes and has his transcript withheld. N.Y. Comp.Codes R. & Reg. tit. 8, § 302.14(c)(2). Plaintiffs Eric Amidon and Winston Brownlow enrolled at SUNY-Albany in Fall 2001 and have paid the student activity fee each semester.

The SA distributes the funds to recognized student organizations ("RSOs"), of which there are more than one hundred. A regulation issued by SUNY's Board of Trustees requires the SA to make funding allocation decisions in a viewpoint-neutral manner. See id. § 302. 14(c)(1)(i).¹ Since August 2003, the SA Constitution has included (1) a requirement that all SA committees and the SA Senate adhere to the principle of viewpoint neutrality, (2) a definition of viewpoint neutrality, (3) a rule that any SA decision violating viewpoint neutrality is "invalid and null and void," (4) a "standard evaluation form" for submission by RSOs in support of funding requests,² (5) requirements of public disclosure upon an RSO's request of any documents relating to a decision denying funding and written statements of the reasons for the denial, and (6) hearing procedures for new and previously unfunded RSOs. SA Const. §§ 808, 809.

RSOs generally must re-apply for funding every year through one of the following methods:

1. Budget Submission: The RSO may present a budget to the Student Association, which the SA Senate may adopt, reject, or modify.

2. Student Referendum: The RSO may seek funding based upon a campus-wide student referendum in which the RSO asks "whether all students should pay a certain dollar amount" to that organization out of the student activity fund. To proceed by referendum, the RSO must either obtain a two-thirds vote of the SA Senate or submit a petition signed by at least 15% of the student body.

In September 2004, the Trustees amended the regulation governing student activity fees to mandate that while advisory referenda of the student body were permissible in making funding decisions, such referenda could not be binding on the student government. See N.Y. Comp.Codes R. & Reg. tit. 8, § 302.14(c)(1)(i). In March 2005, the SA adopted Bylaws implementing this rule. Pursuant to the Bylaws, the SA may use referenda only "to advise [it] regarding the appropriate level of funding and not to determine whether a group will or will not be funded." SA Bylaws § 517.1-.2. The SA Bylaws set forth a nonexclusive set of criteria, to be discussed later, that determine whether the SA should employ the assistance of an advisory referendum to help calculate a particular level of funding. SA Bylaw § 517.5.

Two organizations receive what the plaintiffs characterize as "preferential" treatment. Dippikill, a non-profit corporation that provides an 861-acre property to the school for various activities, is the subject of an advisory referendum at least every four years and most recently received an allocation of $210,000. The second is New York Public Interest Research Group ("NYPIRG"), an RSO whose "mission is to train students in the skills of civic engagement and advocacy through hands-on experience." It provides numerous services to SUNY-Albany such as nonpartisan voter registration, homelessness awareness and service campaigns, and a book exchange. Although it claims to be nonpartisan, plaintiffs assert that it has a "liberal agenda" and an "ideological bent." Like Dippikill, its funding is re-assessed every four years by an advisory referendum guaranteed to NYPIRG by the SA.³ In the most recently reported referendum in Spring 2003, the students approved, and the SA Senate allocated, $5 of each student's $80 fee to NYPIRG.

Amidon and Brownlow decided to counter NYPIRG's "liberal agenda" by establishing the "conservative" RSO College Action Leadership League of New York ("CALL-NY"). CALL-NY "focuses on affordable and accessible higher education and environmental problems facing the world" and hopes to solve "consumer and environmental problems" by "unleashing the power of the free enterprise system." In Spring 2003, Amidon presented a bill to the SA Senate requesting a referendum to the student body on whether $5 per student per semester should be allocated to CALL-NY. The SA Senate rejected the bill without adopting any findings. Undaunted, CALL-NY also sought funding for the 2003-04 school year by submitting a proposed budget to the SA, and it was allocated $1,200.

Plaintiffs filed suit against the SA on March 9, 2004, alleging violations of their constitutional rights. The following day, prior to serving the complaint, Amidon once again formally requested that the SA Senate approve a referendum for a $5 per student per semester allocation to CALL-NY. The SA Senate voted unanimously not to place the CALL-NY funding question on a referendum ballot. A CALL-NY representative then served the March 9, 2004 summons and complaint upon the SA Senate president. CALL-NY did not otherwise apply for funding for the 2004-05 school year.

The complaint asserted five claims against the SA under 42 U.S.C. § 1983. Claim I, the focus of this appeal, charged that the use of student referenda to fund and defund RSOs facially violated the First Amendment.⁴ Plaintiffs sought, inter alia, declaratory and injunctive relief, nominal damages of $1 for the violation of their constitutional rights, a refund of $5 per plaintiff per semester of their mandatory student activity fees, and attorney's fees.

Plaintiffs moved for summary judgment. NYPIRG, believing that plaintiffs' primary goal was to defund it, sought, and was granted, permission to intervene. NYPIRG and the SA filed cross-motions for summary judgment.

The district court granted summary judgment to plaintiffs on claim I. Amidon, 399 F.Supp.2d at 153. The district court held that SUNY-Albany had created a public forum in the form of a fund to support student speech, for which viewpoint neutrality was required. Id. at 147-48. It concluded that the use of advisory referenda was facially viewpoint-based because it necessarily "reflect[ed] the majority view of the value of the RSO on the ballot," did not serve as a proxy for the amount of funding needed, and simply informed the decision makers of public opinion about the group applying for funding. Id. at 150.

NYPIRG and the SA timely appealed, and plaintiffs cross-appealed.

DISCUSSION

We review the district court's grant of summary judgment de novo. Town of Southold v. Town of East Hampton, 477 F.3d 38, 46 (2d Cir.2007). Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We must construe all the evidence in the light most favorable to the nonmoving party, drawing all inferences and resolving all ambiguities in its favor. LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005).

I. Constitutionality of the Use of Advisory Referenda

We are asked to rule on the constitutionality of the SA's referendum policy in the context of a facial challenge. In raising a facial challenge, plaintiffs face a "heavy burden." Nat'l Endowment of the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (quoting Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)). Facial invalidation is "strong medicine," Lopez Torres v. N.Y. State Bd. of Elecs., 462 F.3d 161, 205 (2d Cir.2006), and is used "sparingly and as a last resort." Finley, 524 U.S. at 580, 118 S.Ct. 2168 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). To prevail, plaintiffs must "demonstrate a substantial risk" that application of the challenged practice or provision will lead to a First Amendment violation. See id.

Plaintiffs...